SZCCN v Minister for Immigration
[2004] FMCA 725
•25 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCCN & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 725 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application dismissed by a registrar due to non appearance by the applicant – motion for reinstatement of the judicial review application – applicant asserting ignorance of return date of the judicial review application – applicant’s evidence rejected – motion dismissed. |
Federal Magistrates Court Rules 2001 (Cth)
| First Applicant: Second Applicant: | SZCCN SZCCO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2684 of 2003 |
| Delivered on: | 25 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 October 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms J Bautista Sparke Helmore |
ORDERS
The motion for reinstatement is dismissed.
The first applicant is to pay the respondent’s costs and disbursements of and incidental to the motion, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2684 of 2003
| SZCCN, SZCCO, SZCCP, SZCCQ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFAFIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion of which notice was given on 21 July 2004 seeking the reinstatement of an application for judicial review filed on 8 December 2003 which had been dismissed by Registrar Hedge on 19 May 2004. The application was to review a decision of the Refugee Review Tribunal (“the RRT”) made on 22 September 2003 and handed down on 15 October 2003. The application for judicial review was given a return date of 5 May 2004 at 2.15pm. The proceedings were conducted by the first applicant alone, apparently on behalf of all of the applicants. I will refer to him as the applicant. The applicant failed to appear and the directions hearing was adjourned until 19 May 2004. Again the applicant failed to appear, leaving Registrar Hedge to dismiss the application for default of appearance by the applicant. Registrar Hedge also awarded costs in favour of the respondent Minister.
The applicant notified a new address for service by notice filed on 19 July 2004. Accompanying his notice of motion filed two days later is an affidavit. I received that affidavit for the purposes of today's hearing. I also received oral evidence from the applicant. The applicant says that he was not aware that there was a court hearing on 5 May 2004 and 19 May 2004. He says that he attempted to file his judicial review application by facsimile but there were deficiencies in it and it was returned by the Court. He subsequently provided further information to the Court and he did not hear anything further until he came to the Court on 19 July 2004 to find out what had happened. That was after the judicial review application had been dismissed.
Although the applicant only notified a change of address for service on 19 July 2004 he said that he in fact changed his address some considerable time previously. Initially, he gave evidence that he moved 12 to 14 months ago. However, when I pointed out to him that he was using his old address for service on the judicial review application he said that he must have moved after that. I received into evidence correspondence sent from the Court by letter dated 18 November 2003 (exhibit C1). The applicant told me that he had telephoned the Court and advised of his new address by that stage.
When I showed the applicant correspondence from the Court addressed to his old address he said that the envelope enclosing the correspondence (which is not in evidence) had been sent to the new address. I also showed the applicant the additional information he sent to the Court apparently in response to that correspondence (exhibit C2). When I pointed out to the applicant that he was, in that letter, still using his old address he said that he must have made a mistake. I find that the applicant's evidence as to when he changed his address lacks credibility. Either the applicant changed addresses after his judicial review application was filed on 8 December 2003 or he was at least careless and possibly deceptive in using an out of date address for service.
It does appear that the initial attempt by the applicant to file his judicial review application was unsuccessful and he needed to provide more information. I reject his evidence that he never saw the application in the form it was filed on 8 December 2003 with the return date of 5 May 2004. The application was served on the Minister. I reject the applicant's contention that the application was filed and served without him seeing it. The applicant was not represented by anyone. I find that the applicant was aware that the return date of the application was 2.15pm on 5 May 2004. I reject his evidence to the contrary.
It is unclear whether the applicant was aware of the adjourned directions date on 19 May 2004. I note, however, that correspondence sent to the applicant at the address for service given by him was not returned. I find that the registrar properly dismissed the application for non-appearance on 19 May 2004.
Even if I were wrong in the above findings and some unfairness resulted from the unusual circumstances of the presentation of the judicial review application I would not reinstate it. That is because, in my view, the judicial review application discloses no cause of action. The grounds are those set out in the document headed “Annexure 2” and comprising 23 numbered lines attached to the judicial review application. These appear to be an attack upon the merits of the RRT decision. As I explained to the applicant, the Court cannot review the merits of the RRT decision. The application in very general terms asserts a misapplication of the Refugee’s Convention, unfairness and an improper exercise of power. However, all of the particulars given relate to facts that they are only disputed in relation to the merits of the RRT decision.
In the circumstances, the application would be doomed to fail. Accordingly, it would be pointless to reinstate it.
I dismiss the applicant's motion for reinstatement of the application.
On the question of costs, the motion having been dismissed, Ms Bautista seeks an order for costs fixed in the sum of $1,000 on a party/party basis. This takes into account the earlier costs order made by Registrar Hedge. The applicant refers to his impecuniosity but that is not a reason for me to refrain from making a costs order. No specific amount is prescribed in the Federal Magistrates Court Rules 2001 (Cth) for costs of a motion of this type. In my view, the sum of $1,000 sought would have been reasonably and properly incurred by the Minister in dealing with the motion. Under this Court’s scale of costs, for the purposes of appearance today alone the Minister would have been entitled to receive $685. Preparation in addition to that on a party/party basis supports a costs order of $1,000. I will so order.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 November 2004
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